Agreement or Contract for Deed for Sale and Purchase of Real Estate a/k/a Land or Executory Contract
Kansas Statutes
Chapter 16. - CONTRACTS AND PROMISES
Article 2. - INTEREST AND CHARGES
16-207. Contract rate; penalties for prepayment of certain loans, recording fees; contracting for interest in excess of limitation, penalties, attorney fees; loans excluded.
(a) Subject to the following provision, the parties to any bond, bill, promissory note or other instrument of writing for the payment or forbearance of money may stipulate therein for interest receivable upon the amount of such bond, bill, note or other instrument of writing, at a rate not to exceed 15% per annum unless otherwise specifically authorized by law.
(b) No penalty shall be assessed against any party for prepayment of any home loan evidenced by a note secured by a real estate mortgage where such prepayment is made more than six months after execution of such note.
(c) The lender may collect from the borrower:
(1) The actual fees paid a public official or agency of the state, or federal government, for filing, recording or releasing any instrument relating to a loan subject to the provisions of this section; and
(2) reasonable expenses incurred by the lender in connection with the making, closing, disbursing, extending, readjusting or renewing of loans subject to the provisions of this section.
(d) Any person so contracting for a greater rate of interest than that authorized by this section shall forfeit all interest so contracted for in excess of the amount authorized under this section; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount of interest contracted for in excess of the amount authorized by this section and such amounts may be set up as a defense or counterclaim in any action to enforce the collection of such obligation and the borrower shall also recover a reasonable attorney fee.
(e) The interest rates prescribed in subsection (a) shall not apply to a business or agricultural loan. For the purpose of this section unless a loan is made primarily for personal, family or household purposes, the loan shall be considered a business or agricultural loan. For the purpose of this subsection, a business or agricultural loan shall include credit sales and notes secured by contracts for deed to real estate.
(f) Loans made by a qualified plan, as defined in section 401 of the internal revenue code, to an individual participant in such plan or to a member of the family of such individual participant, are not subject to the interest rates prescribed in subsection (a).
(g) The interest rates prescribed in subsection (a) shall not apply to a note secured by a real estate mortgage or a contract for deed to real estate where the note or contract for deed permits adjustment of the interest rate, the term of the loan or the amortization schedule.
(h) A first mortgage loan incurred for personal, family or household purposes may be subject to certain provisions of the uniform consumer credit code, K.S.A. 16a-1-101 to 16a-9-102, and amendments thereto, as follows:
(1) Certain high loan-to-value first mortgage loans are subject to the provisions of the uniform consumer credit code, other than its usury provisions. Examples of provisions of the uniform consumer credit code applicable to high loan-to-value first mortgage loans include, but are not limited to: Limitations on prepaid finance charges; mandatory appraisals; required disclosures; restrictions on balloon payments and negative amortization; limitations on late fees and collection costs; and mandatory default notices and cure rights.
(2) Certain high interest rate first mortgage loans are subject to certain provisions of the uniform consumer credit code, including, without limitation, provisions which impose restrictions on balloon payments and negative amortization.
(3) If the parties to a first mortgage loan agree in writing to make the transaction subject to the uniform consumer credit code, than [then] all applicable provisions of the uniform consumer credit code, including its usury provisions, apply to the loan.
This subsection is for informational purposes only and does not limit or expand the scope of the uniform consumer credit code.
(i) Subsections (b), (c) and (d) do not apply to a first mortgage loan if:
(1) The parties agree in writing to make the transaction subject to the uniform consumer credit code, K.S.A. 16a-1-101 to 16a-9-102, and amendments thereto; or
(2) the loan is a high loan-to-value first mortgage loan subject to any provision of the uniform consumer credit code.
In the case of a loan described in paragraphs (1) or (2), the applicable provisions of the uniform consumer credit code shall govern the loan in lieu of subsections (b), (c) and (d).
History: L. 1969, ch. 112, 36; L. 1973, ch. 85, 132; L. 1975, ch. 125, 1; L. 1978, ch. 72, 1; L. 1980, ch. 75, 1; L. 1980, ch. 76, 2; L. 1981, ch. 88, 1; L. 1982, ch. 89, 1; L. 1983, ch. 74, 1; L. 1999, ch. 107, 5; L. 2013, ch. 103, 1; July 1.
Chapter 59. PROBATE CODE
Article 35. TRANSFER-ON-DEATH
59-3501. Real estate; transfer-on-death.
(a) An interest in real estate may be titled in transfer-on-death, TOD, form by recording a deed signed by the record owner of such interest, designating a grantee beneficiary or beneficiaries of the interest. Such deed shall transfer ownership of such interest upon the death of the owner. A transfer-on-death deed need not be supported by consideration.
(b) The signature, consent or agreement of or notice to a grantee beneficiary of a transfer-on-death deed shall not be required for any purpose during the lifetime of the record owner.
History: L. 1997, ch. 176, 1; July 1.
59-3502. Same; filing of form with register of deeds.
An interest in real estate is titled in transfer-on-death form by executing, acknowledging and recording in the office of the register of deeds in the county where the real estate is located, prior to the death of the owner, a deed in substantially the following form:
(Name of owner)nbsp; as owner transfers on death to (name of beneficiary) , as grantee beneficiary, the following described interest in real estate: (here insert description of the interest in real estate). THIS TRANSFER ON DEATH DEED IS REVOCABLE. IT DOES NOT TRANSFER ANY OWNERSHIP UNTIL THE DEATH OF THE OWNER. IT REVOKES ALL PRIOR BENEFICIARY DESIGNATIONS BY THIS OWNER FOR THIS INTEREST IN REAL ESTATE.
Instead of the words transfer-on-death the abbreviation TOD may be used.
History: L. 1997, ch. 176, 2; July 1.
59-3503. Same; beneficiary; revocation; change; revocation by will, prohibited.
(a) A designation of the grantee beneficiary may be revoked at any time prior to the death of the record owner, by executing, acknowledging and recording in the office of the register of deeds in the county where the real estate is located an instrument describing the interest revoking the designation. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required.
(b) A designation of the grantee beneficiary may be changed at any time prior to the death of the record owner, by executing, acknowledging and recording a subsequent transfer-on-death deed in accordance with K.S.A. 59-3502. The signature, consent or agreement of or notice to the grantee beneficiary or beneficiaries is not required. A subsequent transfer-on-death beneficiary designation revokes all prior designations of grantee beneficiary or beneficiaries by such record owner for such interest in real estate.
(c) A transfer-on-death deed executed, acknowledged and recorded in accordance with this act may not be revoked by the provisions of a will.
History: L. 1997, ch. 176, 3; July 1.
59-3504. Same; vesting of ownership in beneficiary; grantee beneficiary.
(a) Title to the interest in real estate recorded in transfer-on-death form shall vest in the designated grantee beneficiary or beneficiaries on the death of the record owner.
(b) Grantee beneficiaries of a transfer-on-death deed take the record owner's interest in the real estate at death subject to all conveyances, assignments, contracts, mortgages, liens and security pledges made by the record owner or to which the record owner was subject during the record owner's lifetime including, but not limited to, any executory contract of sale, option to purchase, lease, license, easement, mortgage, deed of trust or lien, claims of the state of Kansas for medical assistance, as defined in K.S.A. 39-702, and amendments thereto, pursuant to K.S.A. 39-709, and amendments thereto, and to any interest conveyed by the record owner that is less than all of the record owner's interest in the property.
(c) If a grantee beneficiary dies prior to the death of the record owner and an alternative grantee beneficiary has not been designated on the deed, the transfer shall lapse.
History: L. 1997, ch. 176, 4; L. 2015, ch. 42, 19; July 1.
59-3505. Same; joint owner.
(a) A record joint owner of an interest in real estate may use the procedures in this act to title such interest in transfer-on-death form. However, title to such interest shall vest in the designated grantee beneficiary or beneficiaries only if such record joint owner is the last to die of all of the record joint owners of such interest. A deed in transfer-on-death form shall not sever a joint tenancy.
(b) As used in this section, joint owner means a person who owns an interest in real estate as a joint tenant with right of survivorship.
History: L. 1997, ch. 176, 5; July 1.
59-3506. Same; application of 58-2414 to grantor.
The provisions of K.S.A. 58-2414, and amendments thereto, apply to the grantor of a transfer-on-death deed.
History: L. 1997, ch. 176, 6; July 1.
Chapter 58. PERSONAL AND REAL PROPERTY
Article 24. TRUSTS AND POWERS
58-2414. Grant reserving power of revocation.
A grantor of lands, reserving an absolute power of revocation, shall be deemed an absolute owner as regards creditors and purchasers.
History: G.S. 1868, ch. 114, 14; Oct. 31; R.S. 1923, 67-414.
Chapter 59. PROBATE CODE
Article 35. TRANSFER-ON-DEATH
59-3507. Same; nontestamentary disposition.
A deed in transfer-on-death form shall not be considered a testamentary disposition and shall not be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.
History: L. 1997, ch. 176, 7; July 1.
Kansas Case Law
Roberts v. Williams, 179 Kan. 498 (Kan.Sup.Ct. 1956) shows a contract for deed viewed differently than a mortgage. Held the real test on whether an instrument was one of sale or a mortgage was whether the parties' relationship was that of debtor or creditor.
In situations involving the sale of real estate using a contract for deed, the purchaser becomes the equitable owner of the realty, and the seller, although holder of the legal title, retains a secured interest in the property to protect future payments. Graham v. Claypool, 26 Kan. App.2d 94 (1999).
When the purchaser has defaulted on a land installment sales contract, the vendor has a right to be made whole and to be placed in the position that he would have been in had the purchaser fully performed. If the purchaser defaults, the vendor may foreclose the contract under the foreclosure laws of the state. Barnett v. Oliver, 18 Kan.App.2d 672 (1993).
A vendor who declares a forfeiture must give the purchaser a reasonable time to cure the problem before the default can take place. Id. at 672.
In Kansas, an action to foreclose a land installment sales contract is an equitable proceeding. Although equitable foreclosure may not be a remedy expressly provided for in the land installment sales contract, it is a well-established remedy under Kansas law. Id. at 672.
Equity will give whatever relief the facts warrant. The distinguishing feature of equity jurisdiction is that it possesses full power to apply settled rules to unusual conditions and to mold its decree so as to do equity between the parties. Equity will administer such relief as the nature, rights, facts, and exigencies of the case demand at the close of the trial or at the time of the making of the decree. Depending upon the equities, there is a broad range of potential resolutions to the suit. The court may (i) strictly enforce the contract in accordance with its terms, upholding the forfeiture of the buyer's equity in the premises, (ii) find that a default has occurred, but give the buyer a deadline by which he can pay off the balance of the purchase price and succeed to fee title, (iii) find that the forfeiture is inequitable and compel the seller to return a portion or all of the purchase price previously paid, (iv) find that the contract is really a mortgage, and require the seller to institute foreclosure proceedings, or (v) deny the forfeiture and reinstate the contract. Id. at 672.
